DocketNumber: No. 0055686
Judges: SUSCO, JUDGE.
Filed Date: 5/30/1991
Status: Non-Precedential
Modified Date: 4/18/2021
On March 27, 1991, the Youmatzes filed an answer and a counterclaim for cancellation of the mortgages. The Youmatzes counterclaim alleges the following facts. On January 30, 1990, at the request of Northwest, the Youmatzes entered into a written commitment agreement with Northwest and RJM, pursuant to which Northwest and RJM were to provide financing for the Youmatzes in excess of one million dollars ($1,000,000.00) for the purpose of constructing a banquet hall and catering facility. This agreement provided that time was of the essence and that construction should be completed by September 1, 1990. Subsequently, on February 21, 1990, the Youmatzes executed to Northwest and RJM, a mortgage note and deed which is the subject of this foreclosure action. Thereafter, the Youmatzes began construction of the facility, pursuant to the written agreed upon schedule of advances by Northwest. As of August 1, 1990, the construction activities were on schedule in conformity with plans and specifications, and were such that the facility would be completed and ready for business on or about November 1, 1990. In reliance upon the agreement that construction would be completed and the facility ready for business on or about November 1, 1990, Judith Youmatz began scheduling bookings for banquets and weddings.
In the beginning of August 1990, Northwest informed the Youmatzes that it had failed to require its participant RJM to deposit amounts to cover expenses in excess of $500,000.00, the amount advanced by Northwest up to that time. As a result, the Youmatzes, who were in the middle of constructing the facility were left with no funds to complete construction.
On or about November 21, 1990, the Youmatzes instituted an action against Northwest alleging breach of contract, negligence and a violation of the Connecticut Unfair Trade Practices Act (CUTPA).
On April 12, 1991, Northwest moved to strike the counterclaim for CT Page 4388 cancellation. Memoranda of law in support and in opposition to the motion to strike were timely filed by the respective parties in accordance with Conn. Practice Bk. 155.
A motion to strike may be used to challenge the legal sufficiency of a counterclaim. Conn. Practice Bk. 152. The motion to strike, "[l]ike the demurrer, . . . admits all facts well-pleaded; it does not admit legal conclusion or the truth or accuracy of opinion stated in the pleadings. Mingachos v. CBS, Inc.,
The plaintiff, Northwest argues in support of the motion to strike that the Youmatzes' counterclaim for cancellation of the mortgages fails to allege sufficient facts to support a cause of action. The plaintiff cites Benassi v. Harris,
The Youmatzes, in opposition to the motion to strike, argue that they have alleged facts sufficient to support a cause of action for cancellation of the mortgages based on the plaintiffs' lack of consideration.
The Youmatzes have alleged facts sufficient to support a claim for cancellation of the mortgages. The alleged failure of Northwest and RJM to provide financing for the completion of the banquet facility may be considered a lack of consideration whether the Youmatzes may be entitled to the equitable relief of cancellation is a factual question, improper to decide on a motion to strike. The motion to strike is denied.
SUSCO, J.